Judge tosses civil suit, officers ‘vindicated’

Two men had been in bed of truck when struck by bullets that were fired by police

March 25, 2014

Ruling that Maui police officers used reasonable force in firing shots at the driver of a fleeing truck that had struck a police officer at Honolua Bay, a judge dismissed a federal civil rights lawsuit brought by two men who were in the bed of the truck when they were hit by bullets.

In an order filed Friday in U.S. District Court in Honolulu, Judge Derrick Watson granted a Maui County request for summary judgment in favor of the officers and the county in the case.

"The officers have been completely vindicated," said Deputy Corporation Counsel Moana Lutey. "This ruling ends the lawsuit in favor of the officers and the county."

The order covers consolidated lawsuits brought by Joshua Nakagawa and Anthony Lum-John, who were facing forward and sitting with their backs against the tailgate of a black Toyota pickup truck during the incident at 4:13 a.m. July 18, 2010.

Police officers Erik Losvar, Russell Kapahulehua, Jun Hattori and Harry Matsuura Jr. were investigating reports of gunshots fired at Punalau Beach, also known as "Windmills," when they came across two vehicles approaching from the opposite direction on a dark, secluded stretch of Honoapiilani Highway. Despite instructions from the officers to stop, a lifted black Toyota 4x4 pickup truck slowed, then suddenly accelerated, striking Losvar as the driver attempted to flee, according to the court order.

All four police officers fired their guns in an effort to stop the driver, inadvertently hitting Lum-John and Nakagawa, who were among four passengers in the truck bed, the order said. Another four people were in the cab of the truck.

"Because the officers were then unaware of Lum-John and Nakagawa's presence in the truck, and reacted reasonably in response to the danger that the truck presented, the officers did not violate plaintiffs' civil rights, are immune from suit and are entitled to summary judgment," according to the order.

Court documents detail the officers' descriptions of events that unfolded in the early-morning hours.

The truck occupants had been at a party at Windmills when Nakagawa got into a fight and was struck on the head by a bottle or rock and cut on the forearm by a jagged piece of glass.

Officers had stopped a black Infiniti leaving the party to question the occupants.

Within seconds, Losvar and Kapahulehua heard tires approaching and walked in the northbound lane to meet the vehicle that turned out to be the truck. The officers heard the vehicle slowing down and Kapahulehua told the driver to stop before the truck "suddenly accelerated," veering toward a gap between a patrol car and the Infiniti. Kapahulehua said he was afraid of being pinned between the truck and patrol car and jumped back to avoid being hit. He saw the truck hit Losvar, who was in the gap between the patrol car and the Infiniti's bumper, and saw the officer launched into the air and over the hood before disappearing in front of the truck.

"Fearing Losvar would be run over, Kapahulehua raised his gun and fired three shots at the driver's head in quick succession," according to the order. "Despite being struck by the truck in the right hip, and being thrown off on the driver's side of the truck, Losvar was also able to fire at the Toyota's driver because he believed that Matsuura was in danger of being struck next or killed."

Losvar believed he had been intentionally struck because "immediately before the truck accelerated, he made eye contact with the driver," according to a court exhibit.

Matsuura, who was behind Losvar, thought Losvar had fallen under the truck's tires after being launched over the hood, according to the order. Matsuura was in the truck's path when it accelerated toward him and he ran out of the way, turning and firing one shot at the driver through the windshield, according to the order.

Hattori, who was across the road, saw the truck accelerate toward the area where he had last seen Matsuura and Losvar and fired toward the driver, believing both fellow officers' lives were at risk, according to court documents.

All officers said they weren't aware that Lum-John and Nakagawa were in the bed of the pickup before the officers fired.

Police said 15 rounds were fired by the officers. Lum-John was shot once in his buttock. Nakagawa was shot three times in the back, once near his left shoulder and twice near his right shoulder.

The driver, Kihei resident Austin Pierman, 21, suffered a gunshot wound to his head behind his left ear. Originally charged with two counts of attempted first-degree murder, Pierman pleaded no contest to reduced charges and is awaiting sentencing.

During a March 5 summary judgment hearing, attorneys for Lum-John and Nakagawa conceded that the county and officers were entitled to have claims dismissed alleging assault and negligent supervision and training. The plaintiffs agreed Friday to dismiss all claims against Matsuura.

In ruling for the remaining three officers, the judge said the plaintiffs didn't meet the standard for substantive due process violation, which would require that the officers' conduct "shock the conscience."

"At each stage of the rapidly evolving encounter, each officer was forced to make split-second decisions," the judge's order said. "The Toyota driver initially slowed his vehicle as he approached the officers, giving the clear impression that he intended to heed Kapahulehua's instruction to stop. Instead, the driver surprised not only the officers, but his own passengers, by suddenly accelerating in an apparent attempt to flee the scene, striking Losvar as he did so, and bearing down on Matsuura in a similar fashion.

"With no time to communicate or coordinate, each officer independently decided to draw and fire his service weapon to halt the driver's actions and protect the officers who were in immediate and obvious danger."

"The court found that the officers' use of force was reasonable based on the circumstance," Lutey said. "Therefore, the officers and the County of Maui prevailed on all claims."

Lutey and Deputy Corporation Counsel Richard Rost represented the officers and the county.

Nakagawa was represented by Michael Green and William Shipley. Lum-John was represented by Hayden Aluli.